1. The present First Appeal has been filed under Section 96 of the Code of Civil Procedure by the Appellant – Original Defendant being aggrieved by the impugned judgment and order rendered in Special Civil Suit No. 279 of 1990 by the learned Civil Judge (SD), Surat, Camp at Bardoli dated 29.6.1998, on the grounds set out in the memo of Appeal inter alia the court below has committed an error as the Plaintiff has not discharged obligation of proving his case by necessary material and evidence which has not been appreciated. It is contended that simply on the basis of the report of the Chartered Accountant, the decree has been passed without supporting material. It is also contended that the court below has failed to appreciate that the report of the Chartered Accountant is based on conjecture and surmises, and therefore, the court has committed an error in appreciating the material and evidence. It is also contended that the court below has failed to appreciate that whenever the occasion arose, the Mamlatdar, Civil Supply used to obtain quantity of grains, oil, sugar and other material for distribution through fair price shop, it would be lifted by making the entry, and therefore, it is not recorded in the report of Chartered Accountant, and thereby the mistake has been committed. It is contended that the Appellant who has been posted on deputation is not under any obligation to personally make good the deficit found, and therefore, the impugned judgment and order is erroneous.
2. Learned Advocate Mr. V.M.Trivedi for the Appellant has referred to the record and has also referred to the deposition of one Mr. Cristian at Exh.26 who had been serving as Mamlatdar with the Civil Supply Corporation, and submitted that it has been admitted that it is not possible to have the physical verification of every item. Similarly, he referred to the deposition of one Thakorebhai Amin at Exh.28, who is incharge of godown as a Manager and submitted that he is responsible for supervising the staff. He also referred to the Auditor's report at Exh.38 and other evidence including the deposition of one Mr. N.D.Parmar at Exh.33 and submitted that he was simply working in the godown and cannot be fasten with the liability to make good the losses. He submitted that even the deposition of Mr. Cristian at Exh.26 and Shri Parmar at Exhibits 33 are considered, it cannot be said that the plaintiff has proved the case. Learned Advocate Mr. V.M.Trivedi for the Appellant submitted that it has been admitted that for the deficit found in the godown there may be various reasons, and unless any physical verification is made, it is not possible to come to any conclusion. He submitted that admittedly the physical verification has not been made. Learned Advocate Mr. Trivedi for the Appellant therefore submitted that unless there is cogent evidence suggesting the negligence or any active participation or role of the present Appellant, he cannot be made liable. He submitted that there is no evidence for establishing any negligence resulting in loss,, and therefore, the impugned order is erroneous. He submitted that even the application for additional evidence has been filed, which may be granted.
3. Learned Advocate Mr. Deepak V. Patel for the Respondent however referred to the papers and the R&P and submitted that the Appellant was the godown Manager where the deficit has been found, and if the report of the Auditor is considered closely, it has been specifically made clear that the proper challans and permits are not found, registers are not properly maintained and the register is prepared based on the challans, which are of lesser amount. He therefore submitted that the various registers, which are required to be maintained, have been considered, and it has been found that it has not been properly maintained like register for MDM scheme. The original challan registers were not available. He therefore submitted that, if there is any deficit found in the godown, where the Appellant was performing his duty as a godown Manager, he would be liable for such deficit, which has caused as a result of his own fault. Learned Advocate Mr. Patel has also referred to the deposition of one Mr. Parmar at Exh.33 and submitted that it has been stated that from 27.2.1986 to 30.2.1986, the physical verification was made and the report was prepared. He therefore submitted that the Auditor has specifically stated that he cannot say, when the Appellant took the charge of the godown. He therefore submitted that the Appeal may not be entertained.
4. During the course of the argument, learned Advocate Mr.
V.M.Trivedi for the Appellant has also submitted that in the guise of pendency of these proceedings, his dues have not been paid, for which he has placed on record a detailed statement showing different amount.
5. Learned Advocate Mr. Deepak Patel for the Respondent however submitted that it is a separate issue and the court has passed a decree after proper appreciation of evidence for recovery of the amount in respect of the loss caused to the Corporation. He therefore submitted that the present Appeal may not be entertained. Learned Advocate Mr. Deepak Patel has also submitted that whatever the amount which is due or the Appellant is entitled, he may have his recourse, and therefore, the present Appeal may not be entertained.
6. In view of the rival submissions, it is required to be considered whether the present First Appeal can be entertained or not.
7. Considering the rival submissions and the evidence in the form of deposition of Mr. Christian at Exh.26, deposition of Thakorebhai Amin at exh.28 and deposition of Mr. N.D.Parmar at exh.33, it is evident that Thakorebhai Amin was the incharge of the godown. However, it cannot be said that the Appellant was not liable as discussed in the impugned judgment. The impugned judgment refers to the material and evidence including the statements of difference and deficit commodities produced at exh.38 clearly suggest that during the service period of the Appellant / Original Defendant many irregularities and mistakes have been found. The observations have been made that the books of accounts and the registers were not up- to-date and were not properly maintained. There is a specific reference to the register at Exh.38 that on physical verification by the Auditor, deficit was found and the Appellant / Original Defendant has stated that the Auditors have nothing against him, and therefore, there is no reason to discard the report of the Auditor. The said report is at exh.34. Therefore, in light of the findings given, based on material and evidence, it cannot be said that there is any error, and the material and evidence on record speaks for itself with regard to the liability of the Respondent. Therefore, the impugned judgment and order does not call for any interference. However, the submissions made by learned Advocate Mr. V.M.Trivedi for the Appellant that no amount of the retiral benefit has been given, which he is otherwise entitled, is a separate and independent issue, which he may pursue in accordance with law. In the present Appeal, the same cannot be considered.
8. Learned Advocate Mr. Deepak Patel for the Respondent has stated that the Appellant – Original Plaintiff has not deposited any amount and particularly when he has also stated that recovery proceedings are initiated, where the Collector, who would be following the recovery proceedings to recover as arrears of land revenue is not even a party and therefore though it has been requested by learned Advocate Mr. V.M.Trivedi for the Appellant, no order could be made with regard to any relief for his claim for the dues. However, it is clarified that it will be open for the Appellant – Original Defendant to pursue the remedy, if any, available to him and it will be decided in accordance with law on merits by the appropriate court.
9. With the aforesaid observations, the present First Appeal deserves to be dismissed and accordingly stands dismissed.
10. Civil Application No. 9351 of 2005 for production of additional evidence in form of documents as well as Civil Application No.390 of 2012 for directions also deserve to be dismissed and accordingly stands dismissed.
(Rajesh H. Shukla,J) Jayanti*